In the Matter of Judicial Disciplinary Proceedings
Against the Honorable David T. Prosser, Jr.

Wisconsin Judicial Commission,

Complainant,

v.

The Honorable David T. Prosser, Jr.,

Respondent.

MEMORANDUM
DECISION OF JUSTICE PATIENCE DRAKE ROGGENSACK

Opinion Filed:

May 1, 2012

Submitted on Briefs:

Oral Argument:

Source of Appeal:

Court:

County:

Judge:

Justices:

Concurred:

Dissented:

Not Participating:

Attorneys:

2012 WI 43

notice

This opinion is subject to
further editing and modification.The
final version will appear in the bound volume of the official reports.

No. 2012AP566-J

STATE OF WISCONSIN:

IN SUPREME COURT

In the Matter of Judicial Disciplinary Proceedings
Against the Honorable David T. Prosser, Jr.

Wisconsin Judicial Commission,

Complainant,

v.

The Honorable David T. Prosser, Jr.,

Respondent.

FILED

MAY 1, 2012

Diane M. Fremgen

Clerk of Supreme Court

MEMORANDUM DECISION OF

JUSTICE PATIENCE DRAKE ROGGENSACK

Before Patience Drake Roggensack, J.

¶1On April 17, 2012, Justice David T. Prosser's Attorney, Kevin
P. Reak, wrote and asked me to disqualify myself from participation in the
above-captioned matter, asserting that I am a material witness.Because Attorney Reak is the attorney of
record for Justice Prosser in this proceeding and because his letter was copied
to the Clerk of the Supreme Court and counsel for the Judicial Commission, I
have interpreted Attorney Reak's April 17 letter as a motion for me to
self-disqualify from participation in the above-captioned proceeding, pursuant
to Wis. Stat. § 757.19(2)(b)
(2009-10).[1]On Justice Prosser's behalf, it is alleged
that because I am "a 'material witness' who was present at events on
February 10, 2010, and ...on June 13, 2011,"
I am disqualified by law from participation in the pending proceeding.

¶2The Judicial Commission has filed no response to Justice Prosser's
motion.[2]Accordingly, I have thoroughly researched
what the law requires of me upon receipt of Justice Prosser's motion, and I
conclude that I am disqualified by law from participating in the
above-captioned proceeding.In
particular, I conclude that I have no choice but to disqualify myself due to
Wis. Stat. § 757.19(2)(b),
which requires self-disqualification when a justice is a material witness in a
matter pending before the supreme court.

¶3Further, I have investigated the common law doctrine known as the
Rule of Necessity.The Rule of Necessity
provides that there are certain circumstances wherein a justice, who is
otherwise disqualified because of a personal interest in the outcome of the
proceeding, may participate.However, when
the disqualifying event is the status of the justice as a material witness in
the pending proceeding, I conclude that the Rule of Necessity cannot trump the
mandatory directive of the legislature.In that circumstance, the justice is disqualified by law pursuant to
Wis. Stat. § 757.19(2)(b).Accordingly, I grant Justice Prosser's motion, and hereby disqualify
myself from judicial participation in the above-captioned proceeding.

¶4On or about February 10, 2010, at a meeting of the supreme
court, I heard what was said by Chief Justice Shirley S. Abrahamson and Justice
Prosser, a part of which is referenced in paragraph 15 of the Complaint in the
above-captioned matter.

¶5On June 13, 2011, I was present at an incident involving Justice
Ann Walsh Bradley and Justice Prosser.I
observed the actions of both Justice Bradley and Justice Prosser.Allegations about the June 13 incident
are a basis of the Complaint in the above-captioned matter.

¶6On June 15, 2011, in the supreme court's conference room, I
gave an oral statement to Capitol Police Chief Charles Tubbs about the
June 13 interaction between Justice Bradley and Justice Prosser.On July 1, 2011, in my supreme court
chambers, I gave a statement to Dane County Sheriff's Department's
investigators about the June 13 interaction between Justice Bradley and
Justice Prosser.My statements to Police
Chief Tubbs and to the investigators from the Dane County Sheriff's Department
were based on my personal observations of the June 13 incident.

II.DISCUSSION

A.General
Principles

¶7A decision on Justice Prosser's disqualification motion requires
me to interpret and apply Wis. Stat. § 757.19(2)(b)
and to evaluate the applicability of the common law doctrine known as the Rule
of Necessity to the pending motion.Statutory interpretation and application present questions of law.Watton v. Hegerty, 2008 WI 74, ¶14, 311 Wis. 2d 52, 751
N.W.2d 369.Whether the Rule of
Necessity may be applied to override the legislature's directive in § 757.19(2)(b)
that would otherwise mandate my disqualification from judicial involvement in
this matter, also presents a question of law.SeeState ex rel. Cook v. Houser, 122 Wis. 534, 577, 100
N.W. 964 (1904).

¶8Statutory interpretation begins with the words chosen by the
legislature in order to determine the meaning of the statute.State ex rel. Kalal v. Circuit Court for
Dane Cnty., 2004 WI 58, ¶45,
271 Wis. 2d 633, 681 N.W.2d 110.The context in which words are used assist in determining a statute's
meaning.Id., ¶46."Statutory language is given its common,
ordinary, and accepted meaning ...."Id., ¶45.At times, a
dictionary may be an aid in interpreting statutory words.Cnty. of Dane v. LIRC, 2009 WI 9, ¶23, 315 Wis. 2d 293,
759 N.W.2d 571.

B.Wisconsin
Stat. § 757.19(2)(b)

¶9Justice Prosser contends that I am a material witness who may be
called to testify about events that form the bases for the Complaint now
pending before the supreme court.He
asserts that my status as a material witness results in my being disqualified
by Wis. Stat. § 757.19(2)(b) from participating in this proceeding.As a threshold matter, his contention
requires me to determine whether § 757.19(2)(b)
applies to justices on the supreme court.

¶10Wisconsin Stat. § 757.19(1)
answers that question.Subsection (1)
provides that the term "judge" as employed in § 757.19 "includes the supreme court justices,
court of appeals judges, circuit court judges and municipal judges."Therefore, by its plain terms, § 757.19(2)(b) applies
to me as a justice of the supreme court.

¶11Because it is alleged that I am disqualified by law pursuant to
Wis. Stat. § 757.19(2)(b),
I consider § 757.19(2)(b), which provides:

(2) Any judge shall disqualify
himself or herself from any civil or criminal action or proceeding when one of
the following situations occurs:

...

(b) When a
judge is a party or a material witness, except that a judge need not disqualify
himself or herself if the judge determines that any pleading purporting to make
him or her a party is false, sham or frivolous.

Subsection (2)(b) prohibits
participation in a pending proceeding if the justice is a "material
witness."Accordingly, I must
determine whether I fit within the category of "material
witness."

¶12Not every witness to an event is a material witness as that term is
used in Wis. Stat. § 757.19(2)(b).For example, in State v. Hampton, 217
Wis. 2d 614, 579 N.W.2d 260 (Ct. App. 1998), Hampton contended that the
circuit court judge who presided at his trial was precluded by § 757.19(2)(b) from
presiding on remand for an evidentiary hearing to assess whether a juror was
sleeping during his trial.Id. at
619.Hampton moved the judge who
presided at his trial to disqualify herselfbecause she had noticed the sleepy juror and Hampton
wanted to question the judge about her observations on remand.Id. at 618.

¶13The circuit court judge denied his motion.Id.That decision was affirmed on appeal because the court of appeals
concluded that the circuit court judge was not a material witness within the
meaning of Wis. Stat. § 757.19(2)(b).Id. at 620.The court of appeals explained that while
observing what occurs in her courtroom technically may make a judge a
"witness," that part of a circuit court's function does not
"transform the trial court into a 'material witness' pursuant to § 757.19(2)(b)."Id.

¶14Whether a witness is a "material witness" is determined
by the nature of the testimony that the witness is able to provide relative to
consequential facts that are in dispute.As Black's Law Dictionary explains, a material witness is a
"witness who can testify about matters having some logical connection with
the consequential facts."Black's
Law Dictionary 1741 (9th ed. 2009).A fact is material or consequential when it is "significant or
essential to the issue or matter at hand."Id. at 670; see also Wis. Stat. § 904.01; 7 Daniel D. Blinka, Wisconsin
Practice Series:Wisconsin Evidence§ 401.101, at 98-101 (3d
ed. 2008).

¶15I was a witness to what was said and done at the events that form
the bases for the pending Complaint.It
appears that there are factual disputes about what occurred on June 13,
such that testimony about that incident will be required in this proceeding.[4]Accordingly, any testimony that I may give
will be directly related to finding consequential facts.

¶16At the time of my observations on June 13, I was not
supervising a courtroom such that my observations would be a necessary part of
my role as a judge in a trial or a hearing.Nor were my observations on June 13 a necessary part of my duties
as a supreme court justice.[5]Therefore, I conclude that I am a material
witness for the June 13 incident that forms a basis for the pending
Complaint.

¶17Even though I am a material witness to the June 13 incident
that underlies the pending matter, the legislature has established conditions
under which my obligation for self-disqualification can be waived.Those provisions are set out in Wis. Stat. § 757.19(3), which
provides:

Any
disqualification that may occur under sub. (2) may be waived by agreement of
all parties and the judge after full and complete disclosure on the record of
the factors creating such disqualification.

Because Justice Prosser has
moved me to disqualify myself, it is apparent that he is not waiving my
obligation for self-disqualification in the pending matter.Therefore, § 757.19(3) does not apply to
my decision.

¶18The standard for determining whether disqualification is required
by Wis. Stat. § 757.19(2)(b)
is an objective standard.[6]SeeState v. Am. TV & Appliance
of Madison, Inc., 151 Wis. 2d 175, 186, 443 N.W.2d 662 (1989).Therefore, once the determination is made
that I am a material witness and that there has been no waiver of my obligation
to disqualify myself, I am disqualified by law according to the command of § 757.19(2)(b), and may
not proceed in a judicial role in this matter.

C.Rule of
Necessity

¶19Notwithstanding the above discussion, there are certain occasions
in which a common law doctrine known as the Rule of Necessity may be applied to
permit a judge to participate in a proceeding from which he or she would
otherwise be disqualified because of a personal interest in the outcome of the
pending proceeding.Accordingly, I
consider the Rule of Necessity.The Rule
of Necessity provides that if a judge has a disqualifying personal interest in
the outcome of the proceeding, and if his or her disqualification would deny a
forum for resolution of the dispute, then there is a potential that the judge
may not be disqualified by his or her personal interest.

¶20The common law out of which the Rule of Necessity arose began with
the maxim that "no man can be a judge in his own cause."In the Matter of the Application of David
R. Ryers, 72 N.Y. 1, 5 (1878). Common law prevented judges from deciding
matters when they had a personal interest in the outcome of the proceeding,
such as a direct pecuniary interest or a kinship to one of the parties.Cook, 122 Wis. at 578.It was thought that permitting judges to
preside in matters when their judicial decisions would benefit or burden the
presiding judge would lead to biased decisions and deny litigants a fair
trial.State ex rel. Barnard v. Bd.
of Educ. of City of Seattle, 52 P. 317, 321 (1898).

¶21However, there were occasions when the only judge available had a
personal interest in the outcome of the case, and if he were not to
participate, no court would decide the case.That circumstance led to the creation of the Rule of Necessity.The Rule of Necessity is based on the concept
that the available judge's personal interest in the outcome of the matter may
be of less concern than having no court to decide the issue.Ryers, 72 N.Y. at 5-6 (explaining that
the Rule of Necessity permitted a judge to appoint the condemnation
commissioners even though he had an interest in the lands subject to
condemnation, because without his appointments the condemnation could not
proceed).

¶22On occasion, the Wisconsin Supreme Court appears to have applied the
Rule of Necessity to justices' participation in a matter where all the justices
had a personal interest in the outcome of the controversy.For example, in State ex rel. Wickham v.
Nygaard, 159 Wis. 396, 150 N.W. 513 (1915), an income tax assessment was levied
on Judge Wickham's salary in 1913 for income paid in 1912.Judge Wickham challenged the assessment as
unlawful because he was a "state officer."Id. at 398.At oral argument before the supreme court,
the attorney for Judge Wickham stated that Judge Wickham was waiving any
objection to members of the court deciding the case and the Attorney General
expressed no view on whether the State was willing to waive.Id.The court explained that:

[t]he members of this court are not directly interested
in this lawsuit, but it is none the less true that the settlement of the main
question of law involved will affect the majority of the court.If it is settled that Judge Wickham's salary
is exempt from assessment for income tax, then the salary of every other public
officer is exempt during his term, where such term began before the passage of
the Income Tax Law.The question
is:Does the fact that the members of
the court, or a majority of them, may or will be affected in a financial way by
the decision which the court is called upon to make disqualify them from
acting?

Id.The supreme court concluded that the justices
were not precluded from deciding the appeal then pending.Id. at 400.

¶23However, the Wisconsin Supreme Court has not consistently employed
the Rule of Necessity when all justices had a personal interest in the outcome
of a proceeding.For example, in Moran
v. Wisconsin Department of Administration, 230 Wis. 2d 103, 603 N.W.2d
234 (Ct. App. 1999), which involved a challenge to Wis. Stat. § 20.923 that set a cap
on judicial salaries, the supreme court refused the certification, even though
the Rule of Necessity was cited to the court as authority for the justices to
act, notwithstanding the justices' personal interest in the outcome. SeeMoran v. Wis. Dep't of Admin., No. 98-3008, 1999 WL 274502 (May 6,
1999).Instead, the supreme court
refused the certification and appointed a panel of retired court of appeal
judges to temporarily serve on the court of appeals and decide whether judicial
salaries were subject to limitation under § 20.923.Moran, 230 Wis. 2d at 104
n.1.

¶24Having a personal interest in the outcome of a proceeding may be
grounded in the financial interest of the judge or a potential or actual impact
on a family member of the judge.In such
circumstances, the judge may be predisposed to decide the proceeding in a way
that will benefit whatever personal interest he has that will be affected by
his judgment.

¶25However, I found no Wisconsin appellate decision where the Rule of
Necessity was applied to permit a judge to participate in a proceeding when the
judge was a material witness, required by statute to recuse himself or
herself.The absence of such decisions
is understandable because when a judge is a material witness, his or her view
of the facts upon which the ultimate legal decision will rest are inextricably
intertwined with the judge's personal observations.

¶26The concern about employing a judge who is a material witness to
the controversy also bears on the public interest in maintaining a fair,
impartial and neutral judge for all judicial proceedings.Having an unbiased judge is fundamental to a
fair judicial proceeding.Marshall v.
Jerrico, Inc., 446 U.S. 238, 247 n.9 (1980).Both the public interest and the litigant's
interest require separating the role of a material witness from that of the
adjudicator who uses testimony from material witnesses to decide the
controversy.

¶27Stated otherwise, when material facts are in dispute, a judge
cannot testify to establish his version of the facts and then use his version
of the facts to decide the controversy.Such a process would be fundamentally unfair, to the parties and to the
public interest.SeePeople ex
rel. Pond v. Bd. of Trs. of Village of Saratoga Springs, 39 N.Y.S. 607, 609
(1896) (explaining that facts provided by testimony of the accuser cannot be
used by that same accuser now acting as judge in order to avoid "suspicion
of the fairness and integrity of the judge" and thereby maintain
confidence in judicial decisions).

¶28Accordingly, I conclude that the Rule of Necessity does not negate
the legislature's mandate in Wis. Stat. § 757.19(2)(b)
that I "shall disqualify" myself from participation in the pending
proceeding because I am a material witness.

III.
CONCLUSION

¶29I have thoroughly researched what the law requires of me upon
receipt of Justice Prosser's motion, and I conclude that I am disqualified by
law from participating in the above-captioned proceeding.In particular, I conclude that I have no
choice but to disqualify myself due to the legislative mandate of Wis. Stat.
§ 757.19(2)(b), which requires self-disqualification when a justice is a
material witness in a matter pending before the supreme court.

¶30Further, even though I am the first justice to respond to a motion
to disqualify in this proceeding, I have investigated the common law doctrine
known as the Rule of Necessity.The Rule
of Necessity provides that there are certain circumstances wherein a justice,
who is otherwise disqualified because of a personal interest in the outcome of
the proceeding, may participate.However, when the disqualifying event is the status of the justice as a
material witness in the pending proceeding, I conclude that the Rule of Necessity
cannot trump the mandatory directive of the legislature.In that circumstance, the justice is
disqualified by law pursuant to Wis. Stat. § 757.19(2)(b).Accordingly, I grant Justice Prosser's motion, and hereby disqualify myself
from judicial participation in the above-captioned proceeding.

[1]All further references
to the Wisconsin Statutes are to the 2009-10 version unless otherwise
indicated.

[3]The facts set out in
this section are found in police reports made public during the course of the
investigation by the Dane County Sheriff's Department and from allegations of
the pending complaint in this proceeding.

[4]It is not clear to me
whether there are factual disputes about what occurred on or about
February 10, 2010.

[5]The incident that
occurred on or about February 10, 2010, occurred during an official court
conference, and as such, it may stand on different footing than the incident of
June 13, 2011.

[6]The objective standard
that is required by Wis. Stat. § 757.19(2)(b)
is contrasted with the subjective standard required by subsection (2)(g).In a subjective determination of
impartiality, the judge decides whether he or she can be impartial in a pending
proceeding.State v. Am. TV &
Appliance of Madison, Inc., 151 Wis. 2d 175, 186, 443 N.W.2d 662
(1989).When the statute employs an
objective standard for disqualification, the legislature has already made the
determination that all judges who come within the subsection's description are
not impartial.Id.